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No unlawful influence on Pentagon official in 9/11 case, Guantanamo judge rules

By CAROL ROSENBERG | Miami Herald (Tribune News Service) | Published: April 11, 2016

Remarks by political leaders stretching back to the George W. Bush presidency have the potential to taint Guantanamo’s Sept. 11 death-penalty trial, the case’s military judge has ruled, meaning defense lawyers may more liberally scrutinize the jury of U.S. military officers.

But the judge, Army Col. James L. Pohl, said a Pentagon official acted independently without outside influences in April 2012 to authorize a death-penalty trial for Khalid Sheikh Mohammed, the alleged mastermind, and four accused co-conspirators in the Sept. 11, 2001, terror attacks that killed nearly 3,000 people.

No 9/11 trial date has been set as defense and prosecution attorneys litigate access to evidence and other pretrial issues. In fact, Pohl canceled two weeks of pretrial hearings this month without explanation after getting a sealed filing from the Justice Department.

But he said in a 17-page ruling posted at the Pentagon’s war court website on Monday that 9/11 trial defense lawyers will get to question would-be jurors and could get “liberal challenges” when the time comes to pick a jury. “Prior to that time any impact, real or imaginative, is speculative,” the Army colonel said.

Pohl added he would “be continually attentive” during jury selection and the trial “as to any inklings of unlawful influence that may arise.”

At issue was a May 2012 filing by defense attorneys that asked Pohl to dismiss the case. They claimed that a senior Pentagon official, retired Vice Adm. Bruce MacDonald, rushed the capital case against the men in April 2012, nearly six years after they got to Guantanamo from three or four years of clandestine CIA interrogation and detention, without adequate input by defense attorneys.

Pohl declined to dismiss the case and also denied the defense request to downgrade it to a noncapital trial, saying the fact-pattern presented by the alleged terrorists’ Pentagon-paid defense attorneys did not demonstrate that MacDonald was subject to unlawful influence.

Nor did they demonstrate that a future jury would be subject to “military and political pressures,” Pohl said, in deciding the “guilt or innocence” of the men or whether to impose a death sentence, if the panel convicts them.

The defense lawyers in 2012 asked to question Bush, President Barack Obama and other political leaders in their bid to show prejudice. The request was denied.

“There has been an inordinate publicity about the attacks on 9/11, the accused and their treatment while detained, and the Military Commission process writ large,” Pohl wrote. But MacDonald denied outside influence in sworn testimony, Pohl noted, and said he spent several months going through “voluminous materials” before approving a death-penalty trial.

“He was most adamant that the decision to refer the accused to a capital trial was his alone,” Pohl ruled, adding that he also found no appearance of unlawful influence.

The ruling decided just one slice of a multifaceted unlawful influence defense motion. Pohl has yet to rule on other claims of political or military interference in his independence, including most recently that the Pentagon tried to pressure Pohl to cancel a temporary order forbidding female guards from touching the accused terrorists when they are being transported to and from court and legal sessions.

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©2016 Miami Herald

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Accused 9/11 mastermind Khalid Sheikh Mohammed appears in this courtroom sketch at his military commission hearing in Guantanamo Bay, Cuba, on Saturday, May 5, 2012.
JANET HAMLIN/MIAMI HERALD

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